Opinion
October 28, 1965
Appeal from the Niagara Special Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously reversed, without costs to this appeal to any party, and motion denied. Memorandum: This action was commenced in January, 1962 to recover damages for personal injuries alleged to have been sustained by the infant on August 22, 1960. A note of issue was filed in March, 1962 and an amended bill of particulars was served more than a year thereafter. It is apparent therefrom that plaintiff was aware of the claimed permanent visual damage requiring the wearing of corrective lenses. Nevertheless, there was a further delay of 18 months until the present motion was made (after the cause was on the Day Calendar) for leave to serve an amended bill of particulars and to increase the amount demanded in the ad damnum clause by the sum of $40,000. In the light of this inordinate and unexplained delay the granting of relief was an improvident exercise of discretion. (Cf. Hernandez v. Ezrow, 24 A.D.2d 730; Miller v. Davis, 24 A.D.2d 730.)